October 21, 2011  

USCIS Announces “Entrepreneurs in Residence” Initiative

WASHINGTON—U.S. Citizenship and Immigration Services (USCIS) Director Alejandro Mayorkas joined the President’s Council on Jobs and Competitiveness in Pittsburgh to announce “Entrepreneurs in Residence.”  This new innovative initiative will utilize industry expertise to strengthen USCIS policies and practices surrounding immigrant investors, entrepreneurs and workers with specialized skills, knowledge, or abilities. Mayorkas announced the initiative at the Jobs Council’s High Growth Entrepreneurship Listening and Action Session at AlphaLab in Pittsburgh before the Council’s quarterly meeting with President Obama.

“This initiative creates additional opportunities for USCIS to gain insights in areas critical to economic growth,” said Director Mayorkas. “The introduction of expert views from the private and public sector will help us to ensure that our policies and processes fully realize the immigration law’s potential to create and protect American jobs.”

USCIS will launch the “Entrepreneurs in Residence” initiative with a series of informational summits with industry leaders to gather high-level strategic input. Informed by the summits, the agency will stand up a tactical team comprised of entrepreneurs and experts, working with USCIS personnel, to design and implement effective solutions. This initiative will strengthen USCIS’s collaboration with industries, at the policy, training, and officer level, while complying with all current Federal statutes and regulations.

The initiative builds upon USCIS’s August announcement of efforts to promote startup enterprises and spur job creation, including enhancements to the EB-5 immigrant investor visa program. Since August, USCIS is:

  • Conducting a review of the EB-5 process
  • Working with business analysts to enhance the EB-5 adjudication process
  • Implementing direct access for EB-5 Regional Center applicants to reach adjudicators quickly; and
  • Launching new specialized training modules for USCIS officers on the EB-2 visa classification and L-1B nonimmigrant intra-company transferees.

October 21, 2011  

October 14, 2011 H-1B Cap Count

As of 10/14/2011, about 43,300 H-1B cap-subject petitions were receipted. USCIS has receipted 19,600 H-1B petitions for advanced degree aliens.

October 18, 2011  

Latest List of ICE Student and Exchange Visitor (SEVIS) Program approved schools.

VIA ICE.gov

Latest List of ICE Student and Exchange Visitor Program approved schools, updated 10/2011

October 10, 2011  

Visa Bulletin For November 2011

Important Information on China-mainland
born and India employment-based second preference visa availability in the coming months:

“The
November Employment-based Second preference cut-off date for
applicants from China and India is
the most favorable since August 2007.  This advancement is expected to
generate significant levels of demand based on new filings for adjustment of
status at U.S. Citizenship and Immigration Services offices.  While
significant future cut-off date movements are anticipated, they may not be made
on a monthly basis.  Readers should not expect such movements to be the
norm throughout the fiscal year, and an eventual retrogression of the cut-off
at some point during the year is a distinct possibility.”

—————

Visa Bulletin for November 2011

Number 38
Volume IX
Washington, D.C.

A. STATUTORY NUMBERS

1. This bulletin summarizes the availability of
immigrant numbers duringNovember.
Consular officers are required to report to the Department of State
documentarily qualified applicants for numerically limited visas; U.S.
Citizenship and Immigration Services in the Department of Homeland Security
reports applicants for adjustment of status. Allocations were made, to the
extent possible, in chronological order of reported priority dates, for demand
received by October 5th. If not all demand could be
satisfied, the category or foreign state in which demand was excessive was
deemed oversubscribed. The cut-off date for an oversubscribed category is the
priority date of the first applicant who could not be reached within the
numerical limits. Only applicants who have a priority dateearlier than the cut-off date may be allotted a
number. If it becomes necessary during the monthly allocation process to
retrogress a cut-off date, supplemental requests for numbers will be honored
only if the priority date falls within the new cut-off date announced in this
bulletin.

2. Section 201 of the Immigration and Nationality Act
(INA) sets an annual minimum family-sponsored preference limit of 226,000. The
worldwide level for annual employment-based preference immigrants is at least
140,000. Section 202 prescribes that the per-country limit for preference
immigrants is set at 7% of the total annual family-sponsored and
employment-based preference limits, i.e., 25,620. The dependent area limit is
set at 2%, or 7,320.

3. INA Section 203(e) provides that family-sponsored and
employment-based preference visas be issued to eligible immigrants in the order
in which a petition in behalf of each has been filed. Section 203(d) provides
that spouses and children of preference immigrants are entitled to the same
status, and the same order of consideration, if accompanying or following to
join the principal. The visa prorating provisions of Section 202(e) apply to
allocations for a foreign state or dependent area when visa demand exceeds the
per-country limit. These provisions apply at present to the following
oversubscribed chargeability areas: CHINA-mainland born, INDIA, MEXICO,
and PHILIPPINES.

4. Section 203(a) of the INA prescribes preference
classes for allotment of Family-sponsored immigrant visas as follows:

FAMILY-SPONSORED PREFERENCES

First:(F1) Unmarried Sons and Daughters of
U.S.
Citizens: 23,400 plus any numbers not required for fourth preference.

Second: Spouses and Children, and Unmarried Sons and Daughters
of Permanent Residents: 114,200, plus the number (if any) by which the
worldwide family preference level exceeds 226,000, plus any unused first
preference numbers:

A. (F2A)
Spouses and Children of Permanent Residents: 77% of the overall second
preference limitation, of which 75% are exempt from the per-country limit;

B. (F2B)
Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents:
23% of the overall second preference limitation.

Third:(F3) Married Sons and Daughters of U.S. Citizens:
23,400, plus any numbers not required by first and second preferences.

Fourth:(F4) Brothers and Sisters of Adult
U.S. Citizens: 65,000, plus any numbers not required by first three
preferences.

On the chart below, the listing of a date for any class
indicates that the class is oversubscribed (see paragraph 1); “C”
means current, i.e., numbers are available for all qualified applicants; and
“U” means unavailable, i.e., no numbers are available. (NOTE: Numbers
are available only for applicants whose priority date isearlier than the cut-off date listed below.)

Family- Sponsored

All Chargeability Areas Except Those
Listed

CHINA- mainland born

INDIA

MEXICO

PHILIPPINES

F1

22JUL04

22JUL04

22JUL04

01APR93

08FEB97

F2A *

15FEB09

15FEB09

15FEB09

01DEC08

15FEB09

F2B

01AUG03

01AUG03

01AUG03

22NOV92

15JUL01

F3

22SEP01

22SEP01

22SEP01

08DEC92

22JUN92

F4

15JUN00

15JUN00

15JUN00

22APR96

22AUG88

*NOTE: For November, F2A numbers EXEMPT from per-country limit are available to applicants from all
countries with priority dates earlier than 01DEC08. F2A numbers SUBJECT to per-country
limit are
available to applicants chargeable to all countries EXCEPT MEXICO with priority dates beginning 01DEC08
and earlier than 15FEB09. (All F2A numbers provided for MEXICO are exempt from the per-country limit;
there are no F2A numbers for MEXICO
subject to per-country limit.)

5. Section 203(b) of the INA prescribes preference
classes for allotment of Employment-based immigrant visas as
follows:         

EMPLOYMENT-BASED PREFERENCES

First: Priority Workers: 28.6% of the worldwide
employment-based preference level, plus any numbers not required for fourth and
fifth preferences.

Second: Members of the Professions Holding Advanced Degrees or
Persons of Exceptional Ability: 28.6% of the worldwide employment-based
preference level, plus any numbers not required by first preference.

Third: Skilled Workers, Professionals, and Other Workers: 28.6%
of the worldwide level, plus any numbers not required by first and second
preferences, not more than 10,000 of which to “*Other Workers”.

Fourth: Certain Special Immigrants: 7.1% of the worldwide level.

Fifth: Employment Creation: 7.1% of the worldwide level, not
less than 3,000 of which reserved for investors in a targeted rural or
high-unemployment area, and 3,000 set aside for investors in regional centers
by Sec. 610 of Pub. L. 102-395.

On the chart below, the listing of a date for any class
indicates that the class is oversubscribed (see paragraph 1); “C”
means current, i.e., numbers are available for all qualified applicants; and
“U” means unavailable, i.e., no numbers are available. (NOTE: Numbers
are available only for applicants whose priority date isearlier than the cut-off date listed below.)

Employment- Based

All Charge-ability Areas Except Those
Listed

CHINA- mainland born

INDIA

MEXICO

PHILIPPINES

1st

 C

C

C

C

C   

2nd

 C

01NOV07

01NOV07

C

C           

3rd

22DEC05

22AUG04

22JUL02

22DEC05

22DEC05

Other Workers*

15NOV05

22APR03

15JUN02

15NOV05

15NOV05

4th

C

C

C

C

C      

Certain Religious Workers

C

C

C

C

C      

5th    
Targeted Employment Areas/Regional
Centers and Pilot Programs

C

C

C

C

C

*Employment Third Preference Other Workers Category:
Section 203(e) of the Nicaraguan and Central American Relief Act (NACARA)
passed by Congress in November 1997, as amended by Section 1(e) of Pub. L.
105-139, provides that once the Employment Third Preference Other Worker (EW)
cut-off date has reached the priority date of the latest EW petition approved
prior to November 19, 1997, the 10,000 EW numbers available for a fiscal year
are to be reduced by up to 5,000 annually beginning in the following fiscal year.
This reduction is to be made for as long as necessary to offset adjustments
under the NACARA program. Since the EW cut-off date reached November 19, 1997
during Fiscal Year 2001, the reduction in the EW annual limit to 5,000 began in
Fiscal Year 2002.

6. The Department of State has a recorded message with
visa availability information which can be heard at: (202) 663-1541. This
recording is updated on or about the tenth of each month with information on
cut-off dates for the following month.

B. DIVERSITY IMMIGRANT (DV) CATEGORY

Section 203(c) of the INA provides up to 55,000
immigrant visas each fiscal year to permit additional immigration opportunities
for persons from countries with low admissions during the previous five years.
The NACARA stipulates that beginning with DV-99, and for as long as necessary,
up to 5,000 of the 55,000 annually-allocated diversity visas will be made
available for use under the NACARA program. This resulted in reduction of the DV-2012 annual
limit to 50,000. DV visas are divided among six geographic
regions. No one country can receive more than seven percent of the available
diversity visas in any one year.

For November, immigrant numbers in the
DV category are available to qualified DV-2012 applicants chargeable to all regions/eligible
countries as follows. When an allocation cut-off number is shown, visas are
available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off
number:

Region 

All DV Chargeability Areas Except Those
Listed Separately

 

AFRICA

13,000

Except: Egypt
8,000
Ethiopia 10,000
Nigeria
10,000

ASIA

10,000

 

EUROPE

11,000

 

NORTH AMERICA
(BAHAMAS)

4

 

OCEANIA

500

 

SOUTH AMERICA,
and the CARIBBEAN

550

 

Entitlement to immigrant status in the DV category lasts
only through the end of the fiscal (visa) year for which the applicant is
selected in the lottery. The year of entitlement for all applicants registered
for the DV-2012 program ends as of September 30, 2012. DV visas may not be
issued to DV-2012 applicants after that date. Similarly, spouses and children
accompanying or following to join DV-2012 principals are only entitled to
derivative DV status until September 30, 2012. DV visa availability through the
very end of FY-2012 cannot be taken for granted. Numbers could be exhausted
prior to September 30.

C. ADVANCE NOTIFICATION OF THE DIVERSITY
(DV) IMMIGRANT CATEGORY RANK CUT-OFFS WHICH WILL APPLY IN DECEMBER

For December,
immigrant numbers in the DV category are available to qualified DV-2012
applicants chargeable to all regions/eligible countries as follows. When an
allocation cut-off number is shown, visas are available only for applicants
with DV regional lottery rank numbers BELOW the specified allocation cut-off
number:

Region

All DV Chargeability Areas Except Those
Listed Separately

 

AFRICA

18,500

Except:
Egypt 12,700
Ethiopia 13,500
Nigeria
12,000

ASIA

15,000

 

EUROPE

13,500

 

NORTH
AMERICA               
(BAHAMAS)

5

 

OCEANIA

575

 

SOUTH AMERICA,
and the CARIBBEAN

600

 

D. CHINA-MAINLAND BORN AND INDIA
EMPLOYMENT-BASED SECOND PREFERENCE VISA AVAILABILITY IN THE COMING MONTHS

The November Employment-based Second preference cut-off
date for applicants from China
and India
is the most favorable since August 2007.  This advancement is expected to
generate significant levels of demand based on new filings for adjustment of
status at U.S. Citizenship and Immigration Services offices.  While
significant future cut-off date movements are anticipated, they may not be made
on a monthly basis.  Readers should not expect such movements to be the
norm throughout the fiscal year, and an eventual retrogression of the cut-off
at some point during the year is a distinct possibility.

E. OBTAINING THE MONTHLY VISA BULLETIN

The Department of State’s Bureau of Consular Affairs
publishes the monthly Visa Bulletin on their website at www.travel.state.gov under the Visas
section. Alternatively, visitors may access the Visa Bulletin directly by going
to:

http://www.travel.state.gov/visa/bulletin/bulletin_1360.html.

To be placed on the Department of State’s E-mail
subscription list for the “Visa Bulletin”, please send an E-mail to the
following E-mail address:

listserv@calist.state.gov

and in the message body type:
Subscribe Visa-Bulletin First
name/Last name
(example: Subscribe Visa-Bulletin Sally
Doe)

To be removed from the Department of State’s E-mail
subscription list for the “Visa Bulletin”, send an e-mail message to the
following E-mail address:

listserv@calist.state.gov

and in the message body type:
Signoff Visa-Bulletin

The Department of State also has available a recorded
message with visa cut-off dates which can be heard at: (202) 663-1541. The
recording is normally updated by the middle of each month with information on
cut-off dates for the following month.

Readers may submit questions regarding Visa Bulletin
related items by E-mail at the following address:

VISABULLETIN@STATE.GOV

(This address cannot be used to subscribe to the Visa
Bulletin.) 

Department of State Publication 9514

CA/VO: October 5, 2011

 

September 16, 2011  

OIG Audit Report on Use of SSNs by H-1B Workers

VIA SSA.gov
A September 2011 audit report claims that 18% of H-1B workers’ SSNs audited by SSA may have used their SSNs for purposes other than to work for their approved employer.  
“Based on the results of our review, we estimate about 7,131 (18 percent) of the 38,546 H-1B workers to whom SSA assigned an SSN in 2007 may have used their SSNs for purposes other than to work for their approved employer.  This estimate includes about 4,433 (11 percent) H-1B workers who had posted wages during our audit period from an employer other than their DHS-approved employer.  This estimate also includes about 2,698 (7 percent) H-1B workers who had no posted wages from 2007 through 2009.
To enhance SSN integrity, we believe SSA should contact DHS to offer to establish a data match agreement to assist DHS’ efforts to identify and reduce the number of H-1B workers who may use their SSNs for purposes other than to work for their approved employer.”
September 5, 2011  

USCIS Issues Guidance Memorandum on Establishing the “Employee-Employer Relationship” in H-1B Petitions

VIA USCIS.GOV

Published Jan. 13, 2010; revised Aug. 2, 2011

Introduction

U.S. Citizenship and Immigration Services (USCIS) issued updated guidance to adjudication officers to clarify what constitutes a valid employer-employee relationship to qualify for the H-1B ‘specialty occupation’ classification.  The memorandum clarifies such relationships, particularly as it pertains to independent contractors, self-employed beneficiaries, and beneficiaries placed at third-party worksites. The memorandum is titled: “Determining Employer-Employee Relationship for Adjudication of H-1B Petitions, Including Third-Party Site Placements:  Additions to Officer’s Field Manual (AFM) Chapter 31.3(g)(15)(AFM Update AD 10-24).”  In addition to clarifying the requirements for a valid employer-employee relationship, the memorandum also discusses the types of evidence petitioners may provide to establish that an employer-employee relationship exists and will continue to exist with the beneficiary throughout the duration of the requested H-1B validity period. 

Questions & Answers

Q:  Does this memorandum change any of the requirements to establish eligibility for an H-1B petition?

A:  No.  This memorandum does not change any of the requirements for an H-1B petition.  The H-1B regulations currently require that a United States employer establish that it has an employer-employee relations with respect to the beneficiary, as indicated by the fact that it may hire, pay, fire, supervise or otherwise control the work of any such employee.  In addition to demonstrating that a valid employer-employee relationship will exist between the petitioner and the beneficiary, the petitioner must continue to comply with all of the requirements for an H-1B petition including:

  • establishing that the beneficiary is coming to the United States temporarily to work in a specialty occupation;
  • demonstrating that the beneficiary is qualified to perform services in the specialty occupation; and 
  • filing of a Labor Condition Application (LCA) specific to each location where the beneficiary will perform services.

Q:  What factors does USCIS consider when evaluating the employer-employee relationship?

A:  As stated in the memorandum, USCIS wi
ll evaluate whether the petitioner has the “right to control” the beneficiary’s employment, such as when, where and how the beneficiary performs the job.  Please see the memorandum in the links in the upper right hand of this page for a list of factors that USCIS will review when determining whether the petitioner has the right to control the beneficiary.  Please note that no one factor is decisive and adjudicators will review the totality of the circumstances when making a determination as to whether the employer-employee relationship exists.

Q:  What types of evidence can I provide to demonstrate that I have a valid employer-employee relationship with the beneficiary? 

A:  You may demonstrate that you have a valid employer-employee relationship with the beneficiary by submitting the types of evidence outlined in the memorandum or similar probative types of evidence. 

Q:  What if I cannot submit the evidence listed in the memorandum? 

A:  The documents listed in the memorandum are only examples of evidence that establish the petitioner’s right to control the beneficiary’s employment.  Unless a document is required by the regulations, i.e. an itinerary, you may provide similarly probative documents.  You may submit a combination of any documents that sufficiently establish that the required relationship between you and the beneficiary exists.  You should explain how the documents you are providing establish the relationship.  Adjudicators will review and weigh all the evidence submitted to determine whether a qualifying employer-employee relationship has been established.

Q:  What if I receive or have received an RFE requesting that I submit a particular type of evidence and I do not have the exact type of document listed in the RFE? 

A:  If the type of evidence requested in the RFE is not a document that is required by regulations, you may submit other similar probative evidence that addresses the issue(s) raised in the RFE.  You should explain how the documents you are providing address the deficiency(ies) raised in the RFE.  Adjudicators will review and weigh all evidence based on the totality of the circumstances.  Please note that you cannot submit similar evidence in place of documents required by regulation.

Q:  Will my petition be denied if I cannot establish that the qualifying employer-employee relationship will exist? 

A:  If you do not initially provide sufficient evidence of an employer-employee relationship for the duration of the requested validity period, you may be given an opportunity to correct the deficiency in response to a request for evidence (RFE).   Your petition will be denied if you do not provide sufficiently probative evidence that the qualifying employer-employee relationship will exist for any time period. 

Q:  What if I can only establish that the qualifying employer-employee relationship will exist for a portion of the requested validity period?

A:  If you do not initially provide sufficient evidence of an employer-employee relationship for the duration of the requested validity period, you may be given an opportunity to correct the deficiency in response to a request for evidence (RFE).   Your petition may still be approved if you provide evidence that a qualifying employer-employee relationship will exist for a portion of the requested validity period (as long as all other requirements are met), however, USCIS will limit a petition’s validity to the time period of qualifying employment established by the evidence.

Q: What happens if I am filing a petition requesting a “Continuation of previously approved employment without change” or “Change in previously approved employment” and an extension of stay for the beneficiary in H-1B classification, but I did not maintain a valid employer-employee relationship with the beneficiary during the validity of the previous petition?

A:  Your extension petition will be denied if USCIS determines that you did not maintain a valid employer-employee relationship with the beneficiary throughout the validity period of the previous petition.  The only exception is if there is a compelling reason to approve the new petition (e.g. you are able to demonstrate that you did not meet all of the terms and conditions through no fault of your own).  Such exceptions would be limited and made on a case-by-case basis.

Q:  What if I am filing a petition requesting a “Change of Employer” and an extension of stay for the beneficiary’s H-1B classification?  Would my petition be adjudicated under the section of the memorandum that deals with extension petitions?

A:  No.  The section of the memorandum that covers extension petitions applies solely to petitions filed by the same employer to extend H-1B status without a material change in the original terms of employment.  All other petitions will be adjudicated in accordance with the section of the memorandum that covers initial petitions.

Q: I am a petitioner who will be employing the beneficiary to perform services in more than one work location.  Do I need to submit an itinerary in support of my petition? 

A:  Yes.  You will need to submit a complete itinerary of services or engagements, as described in the memo, in order to comply with 8 CFR 214.2(h)(2)(i)(B) if you are employing the beneficiary to perform services in more than one work location.  Furthermore, you must comply with Department of Labor regulations requiring that you file an LCA specific to each work location for the beneficiary.

Q: The memorandum provides an example of when a beneficiary, who is the sole owner of the petitioner, would not establish a valid employer-employee relationship. Are there any examples of when a beneficiary, who is the sole owner of the petitioner, may be able to establish a valid em
ployer-employee relationship?

A.   Yes. In footnotes 9 and 10 of the memorandum, USCIS indicates that while a corporation may be a separate legal entity from its stockholders or sole owner, it may be difficult for that corporation to establish the requisite employer-employee relationship for purposes of an H-1B petition.  However, if the facts show that there is a right to control by the petitioner over the employment of the beneficiary, then a valid employer-employee relationship may be established. For example, if the petitioner provides evidence that there is a separate Board of Directors which has the ability to hire, fire, pay, supervise or otherwise control the beneficiary, the petitioner may be able to establish an employer-employee relationship with the beneficiary.

Q:  What happens if I do not submit evidence of the employer-employee relationship with my initial petition? 

A:  If you do not initially provide sufficient evidence of an employer-employee relationship for the duration of the requested validity period, you will be given an opportunity to correct the deficiency in response to a request for evidence (RFE).  However, failure to provide this information with the initial submission will delay processing of your petition.

August 22, 2011  

MANDAMUS LITIGATION AGAINST DOL TO ADDRESS DELAYS IN PREVAILING WAGE DETERMINATIONS AND LABOR CERTIFICATIONS @Legal Action Center

The Legal Action Center issued a practice advisory addressing the filing of a mandamus action in federal district court when the Department of Labor (DOL) has unreasonably delayed issuing a Prevailing Wage Determination (PWD) or adjudicating a labor certification application filed pursuant to the PERM (Program Electronic Review Management) regulations. 

August 22, 2011  

2 Jacksonville, Fla., restaurants and owners ordered to pay more than $934,000 to 30 workers following US Labor Department investigation @US Dept. of Labor

VIA US DOL 8/18/2011 – JACKSONVILLE, Fla. — Two La Nopalera restaurants in Jacksonville and their owners have been ordered to pay 30 employees $934,425 in back wages and liquidated damages under the terms of consent judgments. The agreements resolve a U.S. Department of Labor lawsuit based on an investigation by its Wage and Hour Division that alleged violations of the Fair Labor Standards Act’s minimum wage, overtime pay and record-keeping provisions.

“All workers deserve to be paid fairly, and the Labor Department will hold accountable employers that take advantage of their employees,” said Secretary of Labor Hilda L. Solis. “We want workers to know we will defend their rights under the law to compensation for all hours worked, and we want companies that play by the rules to know we will take action against those that use illegal tactics to gain a competitive advantage.”

Investigators found that kitchen employees were improperly classified as exempt from FLSA overtime pay provisions and consequently paid salaries that did not include compensation for hours worked over 40 in a week. Additionally, every week, tipped employees would receive their tips plus a paycheck that together equaled the minimum wage; however, management required the employees to sign and return the paychecks, and would then cash the checks and put the money back into the restaurant. Through this process, while it appeared that the owners were paying wages, the employees actually were allowed to keep only their tips. Finally, the employers did not maintain accurate records of the hours worked by employees.

The department’s suit was filed in the U.S. District Court for the Middle District of Florida, Jacksonville Division. The following parties agreed to consent judgments resolving the suit: LAJAL Inc., doing business as La Nopalera No. 7 on Beach Boulevard; its owners Javier Valencia, Augustin Hernandez and Maria Hernandez; La Nopalera Mexican Restaurant No. 10 Inc. on Phillips Highway; and its owners Javier Valencia and Luis Cuevas. The judgments hold the restaurants and owners individually and severably liable for future violations of the FLSA and payment of the back wages.

The employees will receive $584,425 in back wages and an additional $350,000 in liquidated damages. The restaurants will be allowed to make the payments in installments over 13 months to the Wage and Hour Division, which will distribute the payments to workers. Other La Nopalera restaurants located in Florida and Georgia were not part of the investigation.

The Wage and Hour Division has several ongoing enforcement initiatives throughout the nation to address similar noncompliance issues that are common in the restaurant and other industries.

The FLSA requires that covered employees be paid at least the federal minimum wage for all hours worked, as well as one and one-half times their regular rates of pay for hours worked over 40 per week. If certain conditions are met, the FLSA permits an employer to take a tip credit toward its minimum wage obligation for tipped employees. The employer must pay tipped employees a cash wage of $2.13 per hour or the state mandated cash wage, whichever is higher; all tips must be retained by the employee except for contributions to a valid tip pooling arrangement; employees must be informed of the tip credit provision; and the amount of tips plus cash wages must equal the federal minimum wage, currently $7.25 per hour. Additionally, the law requires that accurate records of employees’ wages, hours and other conditions of employment be maintained.

This case was investigated by the Wage and Hour Division’s Jacksonville District Office with legal representation supplied by the Labor Department’s Atlanta Regional Solicitor’s Office. For more information about the FLSA, call the division’s Jacksonville office at 904-359-9292 or its toll-free helpline at 866-4US-WAGE (487-9243). Information also is available on the Internet athttp://www.dol.gov/whd.

Solis v. La Nopalera Mexican Restaurant No. 10 Inc.
Case File Number 3:11-cv-583-j37mcr

Solis v. LAJAL, Inc. doing business as La Nopalera No. 7
Case File Number 3:11-cv-584-j34jrk

August 11, 2011  

Citizenship/Naturalization Test

VIA USCIS

The Naturalization Test

To become a naturalized U.S. citizen, you must pass the naturalization test. At your naturalization interview, you will be required to answer questions about your application and background. You will also take an English and Civics test unless you qualify for an exemption or waiver.

Study Materials

USCIS offers a variety of study materials, including:

These and other citizenship resources for immigrants, educators, and organizations are available on the Citizenship Resource Center website.

Exceptions from English & Civics Requirements

For information on exceptions or modifications to the English and civics requirements for naturalization, visit our Exceptions & Accommodations page.

If You Don’t Pass

You will be given two opportunities to take the English and Civics tests and to answer all questions relating to your naturalization application in English. If you fail any of the tests at your initial interview, you will be retested on the portion of the test that you failed (English or Civics) between 60 and 90 days from the date of your initial interview. See 8 CFR 312.5(a) and 335.3(b). 

August 11, 2011  

Visa Bulletin for September 2011

Visa Bulletin for September 2011

Number 36
Volume IX
Washington, D.C.

A. STATUTORY NUMBERS

1.  This bulletin summarizes the availability of immigrant numbers during September. Consular officers are required to report to the Department of State documentarily qualified applicants for numerically limited visas; U.S. Citizenship and Immigration Services in the Department of Homeland Security reports applicants for adjustment of status.  Allocations were made, to the extent possible, in chronological order of reported priority dates, for demand received by August 8th. If not all demand could be satisfied, the category or foreign state in which demand was excessive was deemed oversubscribed.  The cut-off date for an oversubscribed category is the priority date of the first applicant who could not be reached within the numerical limits.  Only applicants who have a priority date earlier than the cut-off date may be allotted a number.  If it becomes necessary during the monthly allocation process to retrogress a cut-off date, supplemental requests for numbers will be honored only if the priority date falls within the new cut-off date announced in this bulletin.

2. The fiscal year 2011 limit for family-sponsored preference immigrants determined in accordance with Section 201 of the Immigration and Nationality Act (INA) is 226,000.  The fiscal year 2011 limit for employment-based preference immigrants calculated under INA 201 is 140,000.  Section 202 prescribes that the per-country limit for preference immigrants is set at 7% of the total annual family-sponsored and employment-based preference limits, i.e., 25,620 for FY-2011.  The dependent area limit is set at 2%, or 7,320.

3.  INA Section 203(e) provides that family-sponsored and employment-based preference visas be issued to eligible immigrants in the order in which a petition in behalf of each has been filed.  Section 203(d) provides that spouses and children of preference immigrants are entitled to the same status, and the same order of consideration, if accompanying or following to join the principal.  The visa prorating provisions of Section 202(e) apply to allocations for a foreign state or dependent area when visa demand exceeds the per-country limit.  These provisions apply at present to the following oversubscribed chargeability areas:  CHINA-mainland born, INDIA, MEXICO, and PHILIPPINES.

4.  Section 203(a) of the INA prescribes preference classes for allotment of Family-sponsored immigrant visas as follows:

FAMILY-SPONSORED PREFERENCES

First: (F1) Unmarried Sons and Daughters of U.S. Citizens:  23,400 plus any numbers not required for fourth preference.

Second: Spouses and Children, and Unmarried Sons and Daughters of Permanent Residents:  114,200, plus the number (if any) by which the worldwide family preference level exceeds 226,000, plus any unused first preference numbers:

A. (F2A) Spouses and Children of Permanent Residents:  77% of the overall second preference limitation, of which 75% are exempt from the per-country limit;

B. (F2B) Unmarried Sons and Daughters (21 years of age or older) of Permanent Residents:  23% of the overall second preference limitation.

Third: (F3) Married Sons and Daughters of U.S. Citizens:  23,400, plus any numbers not required by first and second preferences.

Fourth: (F4) Brothers and Sisters of Adult U.S. Citizens:  65,000, plus any numbers not required by first three preferences.

On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); “C” means current, i.e., numbers are available for all qualified applicants; and “U” means unavailable, i.e., no numbers are available.  (NOTE:  Numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.)

Family- Sponsored All Chargeability Areas Except Those Listed CHINA-mainland born INDIA MEXICO PHILIPPINES
F1 01MAY04 01MAY04 01MAY04 15MAR93 01NOV96
F2A 01DEC08 01DEC08 01DEC08 22SEP08 01DEC08
F2B 01JUL03 01JUL03 01JUL03 01NOV92 22MAR01
F3 22AUG01 22AUG01 22AUG01 22NOV92 15MAY92
F4 15APR00 15APR00 15APR00 22MAR96 08JUL88

*NOTE:  For September, F2A numbers EXEMPT from per-country limit are available to applicants from all countries with priority dates earlier than 22SEP08.  F2A numbersSUBJECT to per-country limit are available to applicants chargeable to all countriesEXCEPT MEXICO with priority dates beginning 22SEP08 and earlier than 01DEC08.  (All F2A numbers provided for MEXICO are exempt from the per-country limit; there are no F2A numbers for MEXICO subject to per-country limit.)

5.  Section 203(b) of the INA prescribes preference classes for allotment of Employment-based immigrant visas as follows:

EMPLOYMENT-BASED PREFERENCES

First:  Priority Workers:  28.6% of the worldwide employment-based preference level, plus any numbers not required for fourth and fifth preferences.

Second:  Members of the Professions Holding Advanced Degrees or Persons of Exceptional Ability:  28.6% of the worldwide employment-based preference level, plus any numbers not required by first preference.

Third:  Skilled Workers, Professionals, and Othe
r Workers:  28.6% of the worldwide level, plus any numbers not required by first and second preferences, not more than 10,000 of which to “*Other Workers”.

Fourth:  Certain Special Immigrants:  7.1% of the worldwide level.

Fifth:  Employment Creation:  7.1% of the worldwide level, not less than 3,000 of which reserved for investors in a targeted rural or high-unemployment area, and 3,000 set aside for investors in regional centers by Sec. 610 of Pub. L. 102-395.

On the chart below, the listing of a date for any class indicates that the class is oversubscribed (see paragraph 1); “C” means current, i.e., numbers are available for all qualified applicants; and “U” means unavailable, i.e., no numbers are available.  (NOTE:  Numbers are available only for applicants whose priority date is earlier than the cut-off date listed below.)

Employment- Based All Chargeability Areas Except Those Listed CHINA- mainland born INDIA MEXICO PHILIPPINES
1st C C C C C
2nd C 15APR07 15APR07 C C
3rd 22NOV05 15JUL04 08JUL02 22NOV05 22NOV05
Other Workers 01AUG05 22APR03 01JUN02 01AUG05 01AUG05
4th C C C C C
Certain Religious Workers C C C C C
5th
Targeted Employment Areas/ Regional Centers and Pilot Programs		 C C C C C

*Employment Third Preference Other Workers Category:  Section 203(e) of the Nicaraguan and Central American Relief Act (NACARA) passed by Congress in November 1997, as amended by Section 1(e) of Pub. L. 105-139, provides that once the Employment Third Preference Other Worker (EW) cut-off date has reached the priority date of the latest EW petition approved prior to November 19, 1997, the 10,000 EW numbers available for a fiscal year are to be reduced by up to 5,000 annually beginning in the following fiscal year.  This reduction is to be made for as long as necessary to offset adjustments under the NACARA program.  Since the EW cut-off date reached November 19, 1997 during Fiscal Year 2001, the reduction in the EW annual limit to 5,000 began in Fiscal Year 2002.

6.  The Department of State has a recorded message with visa availability information which can be heard at:  (202) 663-1541.  This recording is updated on or about the tenth of each month with information on cut-off dates for the following month.

B. DIVERSITY IMMIGRANT (DV) CA
TEGORY

Section 203(c) of the INA provides up to 55,000 immigrant visas each fiscal year to permit additional immigration opportunities for persons from countries with low admissions during the previous five years.  The NACARA stipulates that beginning with DV-99, and for as long as necessary, up to 5,000 of the 55,000 annually-allocated diversity visas will be made available for use under the NACARA program.  This resulted in reduction of the DV-2011 annual limit to 50,000.  DV visas are divided among six geographic regions.  No one country can receive more than seven percent of the available diversity visas in any one year.

For September, immigrant numbers in the DV category are available to qualified DV-2011 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:

Region All DV Chargeability Areas Except Those Listed Separately
AFRICA CURRENT Except: Ethiopia 32,700
ASIA CURRENT
EUROPE CURRENT Except: Uzbekistan  UNAVAILABLE
NORTH AMERICA (BAHAMAS) CURRENT
OCEANIA CURRENT
SOUTH AMERICA, and the CARIBBEAN CURRENT

Entitlement to immigrant status in the DV category lasts only through the end of the fiscal (visa) year for which the applicant is selected in the lottery.  The year of entitlement for all applicants registered for the DV-2011 program ends as of September 30, 2011.  DV visas may not be issued to DV-2011 applicants after that date.  Similarly, spouses and children accompanying or following to join DV-2011 principals are only entitled to derivative DV status until September 30, 2011.  DV visa availability through the very end of FY-2011 cannot be taken for granted.  Numbers could be exhausted prior to September 30.

C. ADVANCE NOTIFICATION OF THE DIVERSITY (DV) IMMIGRANT CATEGORY RANK CUT-OFFS WHICH WILL APPLY IN OCTOBER

For October, immigrant numbers in the DV category are available to qualified DV-2012 applicants chargeable to all regions/eligible countries as follows. When an allocation cut-off number is shown, visas are available only for applicants with DV regional lottery rank numbers BELOW the specified allocation cut-off number:

Region All DV Chargeability Areas Except Those Listed Separately
AFRICA 8,500 Except: Egypt 5,000
Ethiopia 7,000
Nigeria 7,000
ASIA 8,000
EUROPE 8,500
NORTH AMERICA (BAHAMAS) 3
OCEANIA 300
SOUTH AMERICA, and the CARIBBEAN 400

D. DIVERSITY VISA LOTTERY 2012 (DV-2012) RESULTS

The Kentucky Consular Center in Williamsburg, Kentucky has registered and notified the winners of the DV-2012 diversity lottery.  The diversity lottery was conducted under the terms of section 203(c) of the Immigration and Nationality Act and makes available *50,000 permanent resident visas annually to persons from countries with low rates of immigration to the United States.  Approximately 100,021 applicants have been registered and notified and may now make an application for an immigrant visa. Since it is likely that some of the first *50,000 persons registered will not pursue their cases to visa issuance, this larger figure should insure that all DV-2012 numbers will be used during fiscal year 2012 (October 1, 2011 until September 30, 2012).

Applicants registered for the DV-2012 program were selected at random from 14,768,658 qualified entries (19,672,268 with derivatives) received during the 30-day application period that ran from noon on October 5, 2010, until noon, November 3, 2010.  The visas have been apportioned among six geographic regions with a maximum of seven percent available to persons born in any single country.  During the visa interview, principal applicants must provide proof of a high school education or its equivalent, or show two years of work experience in an occupation that requires at least two years of training or experience within the past five years.  Those selected will need to act on their immigrant visa applications quickly.  Applicants should follow the instructions in their notification letter and must fully complete the information requested.

Registrants living legally in the United States who wish to apply for adjustment of their status must contact U.S. Citizenship and Immigration Services for information on the requirements and procedures.  Once the total *50,000 visa numbers have been used, the program for fiscal year 2012 will end.  Selected applicants who do not receive visas by September 30, 2012 will derive no further benefit from their DV-2012 registration.  Similarly, spouses and children accompanying or following to join DV-2012 principal applicants are only entitled to derivative diversity visa status until September 30, 2012.

Only participants in the DV-2012 program who were selected for further processing have been notified.  Those who have not received notification were not selected.  They may try for the upcoming DV-2013 lottery if they wish.  The dates for the registration period for the DV-2013 lottery program are expected to be widely publicized at some point during the coming months.

* The Nicaraguan and Central American Relief Act (NACARA) passed by Congress in November 1997 stipulated that up to 5,000 of the 55,000 annually-allocated diversity visas be made available for use under the NACARA program.  The reduction of the limit of available visas to 50,000 began with DV-2000.

The following is the statistical breakdown by foreign-state chargeability of those registered for the DV-2012 program:

AFRICA
ALGERIA 1,799
ANGOLA 42
BENIN 511
BOTSWANA 7
BURKINA FASO 226
BURUNDI 56
CAMEROON 3,374
CAPE VERDE 9
CENTRAL AFRICAN
REP. 3
CHAD 33
COMOROS 9
CONGO 105
CONGO, DEMOCRATIC
REPUBLIC OF THE 3,445
COTE D’IVOIRE 553
DJIBOUTI 38
EGYPT 4,664
EQUATORIAL GUINEA 4
ERITREA 670		 ETHIOPIA 4,902
GABON 48
GAMBIA, THE 113
GHANA 5,832
GUINEA 899
GUINEA-BISSAU 3
KENYA 4,720
LESOTHO 8
LIBERIA 2,101
LIBYA 136
MADAGASCAR 17
MALAWI 16
MALI 76
MAURITANIA 29
MAURITIUS 59
MOROCCO 1,890
MOZAMBIQUE 13
NAMIBIA 10
NIGER 32		 NIGERIA 6,024
RWANDA 333
SAO TOME AND
PRINCIPE 0
SENEGAL 270
SEYCHELLES 6
SIERRA LEONE 3,397
SOMALIA 175
SOUTH AFRICA 833
SUDAN 757
SWAZILAND 0
TANZANIA 175
TOGO 845
TUNISIA 113
UGANDA 418
ZAMBIA 79
ZIMBABWE 123
ASIA
AFGHANISTAN 109
BAHRAIN 29
BANGLADESH 2,373
BHUTAN 5
BRUNEI 0
BURMA 370
CAMBODIA 596
HONG KONG
SPECIAL ADMIN.
REGION 54
INDONESIA 256
IRAN 4,453		 IRAQ 153
ISRAEL 175
JAPAN 435
JORDAN 152
NORTH KOREA 0
KUWAIT 108
LAOS 1
LEBANON 274
MALAYSIA 118
MALDIVES 0
MONGOLIA 209		 NEPAL 3,258
OMAN 11
QATAR 19
SAUDI ARABIA 217
SINGAPORE 45
SRI LANKA 708
SYRIA 160
TAIWAN 391
THAILAND 73
TIMOR-LESTE 9
UNITED ARAB
EMIRATES 92
YEMEN 149
EUROPE
ALBANIA 1,508
ANDORRA 1
ARMENIA 998
AUSTRIA 130
AZERBAIJAN 304
BELARUS 493
BELGIUM 105
BOSNIA &
HERZEGOVINA 83
BULGARIA 883
CROATIA 107
CYPRUS 26
CZECH REPUBLIC 104
DENMARK 73
ESTONIA 49
FINLAND 91
FRANCE 574
French Polynesia 7
New Caledonia 1
GEORGIA 620
GERMANY 1,709
GREECE 105		 HUNGARY 325
ICELAND 56
IRELAND 213
ITALY 529
KAZAKHSTAN 434
KOSOVO 137
KYRGYZSTAN 321
LATVIA 83
LIECHTENSTEIN 0
LITHUANIA 258
LUXEMBOURG 8
MACEDONIA 160
MALTA 20
MOLDOVA 1,238
MONACO 3
MONTENEGRO 18
NETHERLANDS 149
Aruba 4
Curacao 19
St. Maarten 2
NORTHERN
IRELAND 59		 NORWAY 84
PORTUGAL 66
Macau 19
ROMANIA 1,327
RUSSIA 2,353
SAN MARINO 1
SERBIA 298
SLOVAKIA 80
SLOVENIA 16
SPAIN 232
SWEDEN 200
SWITZERLAND 229
TAJIKISTAN 270
TURKEY 3,077
TURKMENISTAN 143
UKRAINE 5,799
UZBEKISTAN 4,800
VATICAN CITY 0
NORTH AMERICA
BAHAMAS, THE 15
OCEANIA
AUSTRALIA 900
Christmas Islands 3
Cocos Islands 1
FIJI 628
KIRIBATI 14
MARSHALL ISLANDS 4
MICRONESIA,
FEDERATED
STATES OF 2		 NAURU 5
NEW ZEALAND 309
Cook Islands 6
Niue 14
PALAU 5
PAPUA NEW
GUINEA 0
SAMOA 0
SOLOMON
ISLANDS 0		 TONGA 93
TUVALU 0
VANUATU 8
WESTERN SAMOA 9
SOUTH AMERICA, CENTRAL AMERICA, AND THE CARIBBEAN
ANTIGUA AND
BARBUDA 9
ARGENTINA 101
BARBADOS 25
BELIZE 9
BOLIVIA 84
CHILE 43
COSTA RICA 43
CUBA 292		 DOMINICA 18
GRENADA 24
GUYANA 26
HONDURAS 80
NICARAGUA 49
PANAMA 21
PARAGUAY 17
SAINT KITTS AND
NEVIS 7		 SAINT LUCIA 4
SAINT VINCENT AND
THE GRENADINES 16
SURINAME 15
TRINIDAD AND
TOBAGO 175
URUGUAY 19
VENEZUELA 925

Natives of the following countries were not eligible to participate in DV-2012: Brazil, Canada, China (mainland-born, excluding Hong Kong S.A.R. and Taiwan), Colombia, Dominican Republic, Ecuador, El Salvador, Guatemala, Haiti, India, Jamaica, Mexico, Pakistan, Peru, the Philippines, Poland, South Korea, United Kingdom (except Northern Ireland) and its dependent territories, and Vietnam.

E. OBTAINING THE MONTHLY VISA BULLETIN

The Department of State’s Bureau of Consular Affairs publishes the monthly Visa Bulletin on their website at www.travel.state.gov under the Visas section. Alternatively, visitors may access the Visa Bulletin directly by going to:

http://www.travel.state.gov/visa/bulletin/bulletin_1360.html.

To be placed on the Department of State’s E-mail subscription list for the “Visa Bulletin”, please send an E-mail to the following E-mail address:

listserv@calist.state.gov

and in the message body type:
Subscribe Visa-Bulletin First name/Last name
(example: Subscribe Visa-Bulletin Sally Doe)

To be removed from the Department of State’s E-mail subscription list for the “Visa Bulletin”, send an
e-mail message to the following E-mail a
ddress:

listserv@calist.state.gov

and in the message body type: Signoff Visa-Bulletin

The Department of State also has available a recorded message with visa cut-off dates which can be heard at: (area code 202) 663-1541. The recording is normally updated by the middle of each month with information on cut-off dates for the following month.

Readers may submit questions regarding Visa Bulletin related items by
E-mail at the following address:

VISABULLETIN@STATE.GOV

(This address cannot be used to subscribe to the Visa Bulletin.)

Department of State Publication 9514
CA/VO: August 8, 2011

August 11, 2011  

Frequently Asked Questions Regarding Entrepreneurs and the Employment-Based Second Preference Immigrant Visa Category (EB-5 and EB-2)

VIA USCIS

Employment-Based Second Preference Immigrant Visa Category 
Frequently Asked Questions Regarding Entrepreneurs and the Employment-Based Second Preference Immigrant Visa Category

Questions and Answers

Q1. Where can I find the laws governing the Employment Based Second Preference (EB-2) Immigrant Visa Category?
A1. The statutory requirements may be found in the Immigration and Nationality Act (INA) at Section 203(b)(2).  The regulatory requirements may be found in the Title 8 Code of Federal Regulations (8 CFR) at section 204.5(k).

Q2. What is the EB-2 Immigrant Visa Category?
A2. Congress created the employment-based second preference visa category with the Immigration Act of 1990. This classification includes:

Members of the professions holding advanced degrees or their equivalent, and
Individuals who because of their exceptional ability in the sciences, arts, or business will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States, and whose services in the sciences, arts, professions, or business are sought by an employer in the United States.
Q3. Does anyone with an advanced degree qualify for an EB-2 Immigrant Visa?
A3. No, not every individual with an advanced degree will qualify.  It must be demonstrated that the occupation is a profession.  The term “profession” is defined by 8 CFR 204.5(k)(2) as any occupation for which a U.S. baccalaureate degree or its foreign equivalent is the minimum requirement for entry into the occupation.  Occupations include but are not limited to architects, engineers, lawyers, physicians, surgeons, and teachers in elementary or secondary schools, colleges, academics, or seminaries.

Q4. Can an entrepreneur qualify as a member of a profession holding an advanced degree?
A4. Yes.  An entrepreneur can qualify if the:

Entrepreneur will be working for a U.S. employer who files a petition on the entrepreneur’s behalf
Entrepreneur is a member of the profession holding an advanced degree or foreign equivalent degree
Underlying position requires, at a minimum, a professional holding an advanced degree or the equivalent
Petitioning employer has received an individual labor certification from the Department of Labor; and
Entrepreneur meets all the specific job requirements listed on the individual labor certification
Q5. Can an entrepreneur qualify as an individual of exceptional ability in the sciences, arts, or business?
A5. Yes.  An entrepreneur can qualify if the:

Entrepreneur will be working for a U.S. employer who files a petition on the entrepreneur’s behalf
Entrepreneur will be working in the sciences, arts, or business
Entrepreneur has exceptional ability in the sciences, arts, or business
Entrepreneur will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States
Petitioning employer has received an individual labor certification from the Department of Labor; and
Entrepreneur meets all the specific job requirements listed on the individual labor certification.
Q6. Why is a labor certification required to qualify for an EB-2 Immigrant Visa Category?
A6. The labor certification process exists to protect U.S. workers and the U.S. labor market by ensuring that foreign workers seeking immigrant visa classifications are not displacing equally qualified U.S. workers. 

Q7. How is exceptional ability defined?
A7. 8 CFR 204.5(k)(2) defines exceptional ability as degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.

Q8. How can an entrepreneur establish that he or she has exceptional ability in the sciences, arts, or business?
A8. First, the entrepreneur would need to establish that they meet at least three of the criteria found at 8 CFR 204.5(k)(3)(ii).  The criteria are:

(A) An official academic record showing that the beneficiary has a degree, diploma, certificate, or similar award from a college, university, school, or other institution of learning relating to the area
of exceptional ability
(B) Evidence in the form of letter(s) from current or former employer(s) showing that the beneficiary has at least ten years of full-time experience in the occupation for which he or she is being sought
(C) A license to practice the profession or certification for a particular profession or occupation
(D) Evidence that the beneficiary has commanded a salary, or other remuneration for services, which demonstrates exceptional ability
(E) Evidence of membership in professional associations; or
(F) Evidence of recognition for achievements and significant contributions to the industry or field by peers, governmental entities, or professional or business organizations

It should be noted that, as set forth in subparagraph (A) above, the regulation requires that the alien (in this case, the entrepreneur) have a degree “relating to” the area of exceptional ability.  This means that the entrepreneur’s degree need not be in the same field of claimed exceptional ability, but only that it be related to that field.  For example, an entrepreneur seeking to start an internet-related business and who claims exceptional ability in that field might qualify with a degree in computer science, network technology, or certain areas of business.

Second, the entrepreneur must demonstrate that he or she has a degree of expertise significantly above that ordinarily encountered in the sciences, arts, or business.

Q9. If an entrepreneur is unable to provide documentary evidence that he or she meets at least three of the six regulatory criteria for exceptional ability, can he or she submit other evidence to demonstrate exceptional ability in the sciences, arts or business?
A9. Yes.  8 CFR 204.5(k)(3)(iii), states:

If the above standards do not readily apply to the beneficiary’s occupation, the petitioner may submit comparable evidence to establish the beneficiary’s eligibility.

Comparable evidence is to be accorded the same weight as evidence submitted in support of the criteria listed above.  Irrespective of the type of evidence presented, the entrepreneur has the burden of proving, by a preponderance of the evidence (i.e. more likely than not), his or her eligibility for the EB-2 visa classification.  USCIS will take into account the totality of the circumstances when reviewing the evidence provided.  

When comparable evidence is presented, the entrepreneur must explain how and why the regulatory criterion for which comparable evidence is being submitted does not readily apply to his or her occupation. 

There is no limitation on the type of comparable evidence the entrepreneur may present; instead, the focus is on the quality of the evidence presented and how it compares to the regulatory criterion for which it is being substituted.  For example, the entrepreneur might demonstrate such past achievements as his or her successful history in obtaining venture capital funding from reputable sources, or his or her past participation in incubators (entities that provide resources, support, and assistance to entrepreneurs to foster the development and growth of an idea or enterprise) that have high evaluative standards for participation.

Q10. How does an entrepreneur show that he or she will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States?
A10. Entrepreneurs should discuss which element(s) (national economy, cultural or educational interest, or welfare of the United States) the entrepreneurial enterprise is claimed to benefit.  For example, the educational interests of the United States may be met by an entrepreneurial enterprise that establishes tutoring instruction learning centers throughout the United States.
 
As another example, the entrepreneur could demonstrate that at least one aspect of the welfare of the United States will be “substantially” better off were the entrepreneurial enterprise to be located in the United States.  It should be noted that the term “welfare” as used by the statute is a broad concept and could refer to any number of areas. 

NATIONAL INTEREST WAIVER

Q11. Is there a “national interest waiver” (NIW)?  And if so, what is it?  Can an entrepreneur qualify for a NIW?
A11. Yes.  A NIW exempts the petitioner from the normal requirement of a job offer, and thus from obtaining a labor certification from the U.S. Department of Labor.  Entrepreneurs, if they qualify, can obtain a waiver of the job offer requirement if it is in the national interest.  

Q12. If an entrepreneur wants to file for a NIW, does he or she still have to be a member of the profession holding an advanced degree or an individual of exceptional ability?
A12. Yes.  The entrepreneur must first demonstrate that he or she is either a member of the profession holding an advanced degree or an individual of exceptional ability.

Q13. If an entrepreneur wants to file fo
r a NIW must he or she have an actual employer in the United States?
A13. No.  Pursuant to INA 203(b)(2)(B), an entrepreneur does not need to have an actual job offer from a U.S. employer if he or she qualifies for a NIW.  In other words, an entrepreneur may be able to petition for him or herself and fill the role of both the petitioner and beneficiary.  The law provides that the Secretary of the Department of Homeland Security may, if he or she deems it to be in the national interest, waive the requirements that an individual’s services in the sciences, arts, professions, or business be sought by an employer in the United States. 

Q14. Is there a definition of “national interest”?
A14. The term “national interest” is not defined in the statute or the regulations, and Congress did not specifically define the phrase in the relevant legislative history.  However, USCIS issued a precedent decision concerning NIWs, Matter of New York State Dept. of Transportation, 22 I&N Dec. 215 (Comm. 1998) (NYSDOT). 

While NYSDOT does not involve an entrepreneur, the decision contemplates that entrepreneurial or self-employed beneficiaries may qualify for the NIW under limited circumstances.  Footnote 5 in the decision states:

The Service acknowledges that there are certain occupations wherein individuals are essentially self-employed, and thus would have no U.S. employer to apply for a labor certification…[T]he petitioner still must demonstrate that the self-employed alien will serve the national interest to a substantially greater degree than do others in the same field.

NYSDOT lays out a three pronged test for NIW applicants to qualify for a waiver of the job offer requirement.
 
Q15. What are the three prongs laid out in the NYSDOT decision?
A15.


1. The waiver applicant must seek employment in an area that has substantial intrinsic merit.
2. The waiver applicant must demonstrate that the proposed benefit to be provided will be national in scope. 
3. The waiver applicant must demonstrate that it would be contrary to the national interest to potentially deprive the prospective employer of the services of the waiver applicant by making available to U.S. workers the position sought by the waiver applicant.

Stated another way, the petitioner, whether the U.S. employer or the NIW applicant, must establish that the entrepreneur will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications.

Q16. How does the first prong of NYSDOT relate to entrepreneurs?
A16. Under the first prong of the NYSDOT test, the entrepreneur must seek employment in an area that has substantial intrinsic merit.  It is important for the entrepreneur to focus on the proposed employment rather than the entrepreneur’s qualifications.  In NYSDOT, the beneficiary was a structural engineer working on highway bridges. This activity was found to have substantial intrinsic merit. 

Q17. How does the second prong of NYSDOT relate to entrepreneurs?
A17. The second prong of the NYSDOT test requires that the entrepreneur demonstrate that the proposed benefit to be provided will be national in scope.  For example, the entrepreneur might be able to demonstrate that the jobs his or her business enterprise will create in a discrete locality will also create (or “spin off”) related jobs in other parts of the nation.  Or, as another example, the entrepreneur might be able to establish that the jobs created locally will have a positive national impact.  As described below, and as the law contemplates, USCIS will give due consideration to entrepreneurs who establish that their entrepreneurial enterprise will serve the national interest to a substantially greater degree than the work of others in the same field.

Q18. How does the third prong of NYSDOT relate to entrepreneurs?
A18. NYSDOT’s third prong is best understood in light of the labor certification process and the assumed benefit that it provides to the United States.  An individual seeking an exemption from this process must present a national benefit so great as to outweigh the national interest inherent in the labor certification process.  NYSDOT’s third prong requires that the entrepreneur “present a significant benefit to the field of endeavor.”  The field should be the same as that identified in prong one of the analysis and the entrepreneur must document how the entrepreneurial enterprise will benefit that field.

NYSDOT states:


“In all cases, while the national interest waiver hinges on prospective national benefit, it clearly must be established that the beneficiary’s past record justifies projections of future benefit to the national interest. The petitioner’s subjective assurance that the beneficiary will, in the future, serve the national interest cannot suffice to establish prospective national benefit if the beneficiary has few or no demonstrable achievements.”

The entrepreneur who demonstrates that his or her business enterprise will create jobs for U.S. workers or otherwise enhance the welfare of the United States may qualify for an NIW.  For example, the entrepreneur may not be taking a job opportunity from a U.S. worker but instead may be creating new job opportunities for U.S. workers.   The creation of jobs domestically for U.S. workers may serve the national interest to a substantially greater degree than the work of others in the same field.





Last updated:08/02/2011
August 11, 2011  

Transcript: Press Conference on Initiatives to Promote Startup Enterprised and Spur Job Creation, Aug. 2, 2011

Press Conference
U.S. Citizenship and Immigration Services
Aug. 2, 2011
USCIS ANNOUNCES INITIATIVES TO PROMOTE STARTUP ENTERPRISES
AND SPUR JOB CREATION
Press Conference
Moderator: Edna Ruano, Chief, Office of Communications
U.S. Citizenship and Immigration Services (USCIS
August 2, 2011
3 P.M. EDT
Coordinator: Welcome and thank you for standing by. At this time, all participants are in a
listen only mode until the question and answer session. If you would like to
ask a question at that time, please press star 1 on your touchtone phone and
clearly record your name when prompted. Todays’ conference is being
recorded. If you have any objections, you may disconnect at this time.
 I’d like to go ahead and turn the call over to your host for today, (Edna
Ruano), USCIS Chief of the Office of Communications. You may begin.
(Edna Ruano): Thank you, Jose. This is (Edna Ruano), the Chief of the Office of
Communications. I am happy to welcome everybody onto the phone call. As
to the format and the time frame, we have about 30 minutes with USCIS
Director Alejandro (Ali) Mayorkas. So we will have him introduce the topic
of today’s announcement and then open it up to questions when his remarks
are finished.
 Thank you again for joining us today.
August 11, 2011  

@Forbes – “To Create Jobs, Streamline The Issuance Of Visas”

Via Forbes

Alex Nowrasteh of the Competitive Enterprise Institute recommends that Congress take aggressive steps to attract skilled foreigners to the U.S. by making some changes in the employment based permanent residency process (aka employment based green cards).

His suggestions include:

1. Removing the labor certification process from the employment based second preference permanent residency process (jobs requiring an advanced degree or bachelors + five years of progressively responsible experience) more familiarly known as the “EB-2”,
2. Expanding the EB-5 investment based permanent residency process (wherein an individual invests either $1,000,000.00 or $500,000.00 in an eligible U.S. business and employs at least ten workers) to include to include purchases of residential property.

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